United States District Court, N.D. Illinois, Eastern Division
June 7, 2005.
LOUIS ARCH, Plaintiff,
GLENDALE NISSAN, and WELLS FARGO, Defendants.
The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge
MEMORANDUM OPINION AND ORDER
Having accepted an offer of judgment in the amount of $5000,
Plaintiff seeks an award of legal fees in the amount of $15,734
and additional "non-taxable expenses" in the amount of $577.03.
Defendants have raised several objections. For the reasons stated
here, those objections are sustained in part and overruled in part.
I. Hourly Rate
Plaintiff's attorneys, Dmitry Feofanov and Sharmila Roy, claim
hourly rates of $250.00 and $300.00 respectively. Defendants
contend both hourly rates are inflated. They ask the court to
award $170 per hour for Mr. Feofanov's time and to deny any award
for Ms. Roy's efforts.
As the Seventh Circuit has recognized, "[t]he best evidence of
the lawyer's quality is the fee he commands in the market," but
such evidence may not be available where, as in this case, the
lawyer is usually compensated only by court-awarded fees when he
prevails. Fogle v. William Chevrolet/Geo, Inc., 275 F.3d 613,
615 (7th Cir. 2001). Plaintiff argues that the fact that
counsel's recovery was contingent on success militates in favor
of a higher rate than the one earned by retained counsel at
standard hourly rates. In the court's view, Attorneys Feofanov and Roy have offered
adequate support for their claimed hourly rates. Mr. Feofanov has
been awarded fees at hourly rates of $225 and $240 by federal and
state courts in 2001, 2003, and 2004. (Feofanov Aff. ¶ 7.) As he
notes, an associate attorney who represented Defendant Wells
Fargo in this litigation graduated from law school five years
after Mr. Feofanov did and bills an hourly rate of $230
regardless of the litigation's outcome. At the time of the fee
petition, Ms. Roy had practiced law for almost 20 years, had
represented plaintiffs in consumer fraud cases at the trial and
appellate levels, and taught law school classes in federal
practice. (Roy Aff. ¶¶ 2, 3.) She relies in part on the Laffey
matrix (see Laffey v. Northwest Airlines, Inc.,
572 F. Supp. 354 (D.D.C. 1983)) in support of her request for a $300.00 fee
award. The affidavits of Attorneys Michelle Weinberg and William
Hutul (contrary to Defendants' interpretations) provide further
support for the rates requested by counsel.
Defendants' objections to the claimed hourly rates for Plaintiff's counsel
are overruled. As Plaintiff has offered no evidence concerning the
qualifications and education of the paralegal for whom he seeks
compensation, however, the court sustains Defendant's objection to any award
for the paralegal's time (which in any event appears to have been devoted to
II. Hours Expended
Defendants object, in addition, to certain time entries. First,
Defendants contend that devoting eleven hours of Mr. Feofanov's
time to research and preparation of the complaint is excessive.
Eleven hours for research is, on its face, unexceptional; the
complaint alleged claims under the Truth in Lending Act, the
Motor Vehicle Information and Cost Savings Act, the Illinois
Consumer Fraud Act, the Magnuson-Moss Warranty Act, and the
Illinois Commercial Code. Plaintiff asserts that his TILA theory
that Defendants' treatment of "negative equity" in Plaintiff's trade-in vehicle resulted in an undisclosed finance charge
measured by sales tax was one of first impression in this
district. Defendants' citation to a complaint filed by Plaintiff
in another matter, one that did not include a TILA claim, does
not rebut this assertion. This objection is overruled.
Second, Defendants object to Plaintiff's request for one hour
of Mr. Feofanov's time preparing a letter on February 14, 2003;
another hour for a January 9, 2004 letter; and one hour on
January 21, 2004, during which Mr. Feofanov prepared a letter and
conferred with Ms. Roy (presumably for.3 hours as reflected in
Ms. Roy's own time record). Having reviewed the letters
themselves, copies of which Defendants have attached as exhibits
to their opposition papers, the court sustains this objection in
limited part. The February 14, 2003 is longer than a single page
and summarizes Plaintiff's claims and demands. Devoting one hour
to this letter is generous but not excessive. Similarly, Mr.
Feofanov's January 21 letter sets forth a detailed settlement
demand and required a calculation of his and Ms. Roy's fees to
date. Again, one hour of attorney time is awarded. With respect
to the January 9 letter, which simply memorialized the parties'
dispute concerning deposition discovery, Plaintiff has conceded
that an hour devoted to this letter is excessive and has voluntarily
reduced the amount to .2 hours. (Reply memorandum at 6.)
The court likewise sustains Defendant's objection to
Plaintiff's request for compensation of his attorney for clerical
and administrative tasks including searching for addresses for
defense counsel (.5 hours on February 14, 2003); reviewing
service documents prepared by a paralegal (.5 hours on October
14, 2003) and filing the complaint (.3 hours on October 14,
2003). An attorney who commands a significant hourly rate should
not be compensated at that rate for work that well-trained
clerical staff can perform. See Spegon v. Catholic Bishop of
Chicago, 175 F.3d 544, 553 (7th Cir. 1999).
Ms. Roy's significant consumer litigation experience and
substantial hourly rate militate against awarding fees for the four hours she devoted to legal
research on December 29 and 30, 2003, several weeks after Mr.
Feofanov performed his own research and filed the complaint. The
court will reduce Ms. Roy's research time to one hour. Similarly,
given Mr. Feofanov's investment of seven hours in preparation of
a motion to strike Defendant Wells Fargo's answer and counterclaim,
the court will reduce Plaintiff's claim for an additional two hours
of Ms. Roy's time reviewing that pleading to .5 hours.
The court overrules Defendants' objection to an award for any
time reportedly devoted by Ms. Roy to preparation of a motion for
summary judgment. No such motion was filed, so any argument that
this effort contributed to Plaintiff's success in obtaining a
modest offer of judgment in this case would be speculative. In
their offer of judgment, however, Defendants proposed to pay
"reasonable attorneys' fees for time actually incurred," without
regard to whether the attorney time directly contributed to
Plaintiff's success. The court agrees with Defendants, however,
that Plaintiff is not entitled to recover for one hour's time
researching the propriety of attendance at depositions by a third
party. Plaintiff explains he sought the insights of another
attorney who has particularized knowledge of Defendant Glendale
Nissan's practices, but he has not explained why he did not
simply seek Defendants' acquiescence to the presence of this
Mr. Feofanov devoted 11.1 hours to preparation for the
depositions of two employees of Defendant Glendale Nissan.
Plaintiff insists this case was one of first impression and that
he intended to "lock in Defendants into binding admissions."
Again, however, such lengthy effort is inconsistent with
Plaintiffs claim that Mr. Feofanov's significant consumer law
expertise justifies a substantial hourly rate. The court will
reduce this claim to three hours for each deponent, a total of 6
hours. Finally, Defendants object to Plaintiffs request for
compensation for 4.0 hours of Mr. Feofanov's time on December 16,
2003, much of it traveling from Dixon, Illinois, to the
courthouse in Chicago for an initial status conference. This
objection is overruled. Mr. Feofanov sought leave to appear by
telephone for subsequent conferences, a request appropriate for
an attorney located at a distance from Chicago in a case where
the recovery is likely to be modest. Travel time is ordinarily
compensable, see In re Maurice, 69 F.3d 830, 834 (7th Cir.
1995) because it reflects lost opportunity, whether the lawyer is
working on a contingency or hourly-rate basis. Most
significantly, as Plaintiff notes, Defendant Glendale Nissan's
attorney himself billed 3.9 hours for this same court appearance,
though that attorney's office is much closer to the courthouse
than is attorney Feofanov's office.
III. Post-Offer Fees
Defendants argue that pursuant to the express terms of their
offer of judgment, Plaintiff is entitled to no recovery for any
time devoted to this case after acceptance of that offer.
Plaintiff contends that a misplaced apostrophe in the offer of
judgment renders that offer ambiguous and requires the court to
construe it in Plaintiffs favor. The court deplores punctuation
errors (particularly its own), but notes that regardless whether
the apostrophe is given effect, the offer appears to preclude
recovery of post-judgment fees. Cf. Guerrero v. Cummings,
70 F.3d 1111 (9then Cir. 1995). The court reaches this conclusion
with some reluctance; taken to its extreme, the provision at
issue could allow an offering defendant to object to every dollar
requested as unreasonable and yet refuse to pay any fees for the
litigation necessary for a plaintiff to establish his entitlement
to reasonable compensation. Contrary to Plaintiff's
characterization, however, Defendants have not adopted such a
scorched-earth approach here. The objection to any award for time
after January 22, 2004 is sustained. CONCLUSION
Plaintiff's petition for an award of fees is granted in part
and denied in part. Plaintiff is directed promptly to submit
proposed revised calculations consistent with this order. Upon
receipt of those calculations, the court will enter an award in
an amount certain.
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